LAW AND POLITICS IN NIGERIA’S FLEDGLING DEMOCRACY

THE CONCEPT OF RULE OF LAW IN A TRAUMATIZED POLITY:

THE NIGERIAN EXAMPLE

BEING A SPEECH DELIVERED TO THE NIGERIAN BAR ASSOCIATION AGUATA BRANCH DURING THEIR MAIDEN LAW WEEK / BAR DINNER ON THE 26TH OF OCTOBER, 2005 BY U. N. UDECHUKWU, SAN, ATTORNEY-GENERAL, ANAMBRA STATE

PREAMBLE

I must thank the members of Aguata Branch of the Nigerian Bar Association for taking on the task of organizing a maiden Law Week / Bar Dinner and for accomplishing it. I note with singular approval and interest the very thoughtful theme of the Law Week – LAW AND POLITICS IN NIGERIA’S FLEDGLING DEMOCRACY. I am grateful for the opportunity given me to speak on the sub-theme - THE CONCEPT OF RULE OF LAW IN A TRAUMATIZED POLITY: THE NIGERIAN EXAMPLE.

From the program, I notice that you assigned 55 minutes to this lecture. I shall try to keep within the allotted time though the topic which has been chosen for the lecture is a mouth full.

It is usual to start by defining key terms. Let me however first of all emphasize the obvious significance of the topic which has been chosen. It presupposes that Nigeria is an example of a traumatized polity. What then is the meaning of the term traumatized polity? What makes Nigeria a typical example of such a polity?

TRAUMA IN THE POLITY

The word trauma, using the ordinary English dictionary without any pretension to medical knowledge means: a mental condition caused by severe shock, especially when the harmful effects last for a long time. It also means: an unpleasant experience that makes you feel upset and anxious1.

What about polity? Again, I take a simple dictionary definition. It means: a society as a politically organized State2. At this juncture, I believe we can all agree that Nigeria as a nation State and a FederalRepublic is a polity. I think we can also accept that it is a legal entity. I venture to think also that even legal abstractions without biological souls can suffer trauma. This will happen when members of the polity go through unpleasant experience or experiences which make them feel upset and anxious, or when they suffer such social shocks which affect their mental attitude and distort their psyche. This may produce harmful effects which may last for a long time.

The premise therefore is that Nigeria as a nation State and a FederalRepublic had at some period of its existence, suffered traumas. Some specific occasions of these traumas may be identified. They include:-

(i).The period of forced amalgamation of various and varied ethnic nationalities into one incongruous nation of peoples with radically different cultural values and value systems, with the attendant culture-shock.

(ii).The arrangement of this amalgam into unequal social segments. This of course laid the foundation for the feeling of marginalization which has remained with us, distorting our social equilibrium.

(iii).The political upheaval in western Nigeria immediately after independence, which upheaval led to a declaration of a State of emergency in that region and culminated eventually in the trial and imprisonment of Obafemi Awolowo and others for alleged treasonable felony. This event was cited by the coup plotters as partly the reason for the first coup de tat in Nigeria in 1966.

(iv).The long drawn out and most divisive Nigerian civil war with the attendant total disorientation of the psyche of the igbo man, turning him into an extreme self-preservationist, with very little regard for scruples or the instinct for group perpetuation or survival.

(v).The Gowon and post Gowon era of coups and counter coups up to the draconian days of Buhari and Idiagbon and the abrakadabra days of Babangida and Abacha.

(vi).The second coming of Chief Olusegun Obasanjo.

Time does not permit a full discussion of each of these infamous epochs of our development as a nation. In my keynote address to the Magistrates during the Magistrates’ Week activities, on the 24th day of March, 2004, I briefly traced the long term harmful effects of these traumas. I said then that we, the present generation and citizens of this country, Nigeria have inherited a nation with a chequered history. We started as independent nationalities and tribes. We became an amalgamation of diverse nationalities under colonial administration. Eventually we became an independent nation under the Commonwealth of Nations. We started off as a parliamentary democracy after the British model. We became a republic organized after the American model. No sooner had we taken off as an independent nation than our political elite began an unwitting walk down the road to perdition. The evil seeds of social injustice and political retrogression began to germinate and to take root.

Professor Chinua Achebe in his prophetic historical fiction – A MAN OF THE PEOPLE – captured in bold relief the steady decline of our national ethos, from grace to grass, down to the time when our soldiers broke out of their barracks and ineradicably jeopardized the development of civic and political culture of governance, social responsibility, social justice and the rule of law.

This unfortunate distortion of values, norms and ethics brought about more than three decades of military disorientation of our political perspectives, growth and development. From one military coup to another, the very fabric of our political and civic norms and values suffered progressive and inexorable debasement.

Life became devalued, our currency became devalued, our educational system became devalued, our social culture became devalued, our political ethos became devalued. Every regiment of military adventurers in power who marched by further trampled upon the debris of our social debasement and shame. The consequence of this state of aberration is that during the short intervals when civil rule was reintroduced and when the culture of democratic governance came in for relearning, most political dramatis personae lacked any ethical precedents to draw from and therefore went about their act as if the object of politics is to grab power and money by any means. Many politicians for lack of civic culture and the attribute of statesmanship became more of ordinary political animals than statesmen.

The greatest obstacle to unbridled pursuit of power, money and influence, is the rule of law. The military politicians and their imitators therefore considered the law and the Courts established to apply them as an uncomfortable straightjacket from which they must free themselves if they could, or otherwise as a device to be used to legitimize the fraud and oppression of the citizenry. This was basically why the experiment of Civilian Government failed between 1979 and 1983. The military created a distorted political landscape and ushered in the civilian politicians to gambol in it.

In the year 1999, we began another experiment. This time, the level of social decadence and absence of refined civic and political culture had reached an unimaginable proportion. Politics has become a trade and the merchants make stupendous financial outlay for the sole purpose of hijacking the structure of Government, both executive, legislative and judicial, with a view to controlling the State and its treasury to the detriment of the ordinary man. It does not matter at what level in the political pecking order the citizen finds himself, the philosophy of greed and avarice have become the order of the day. I liken it to an endangered specie scampering out and away from the cesspit. The rule of survival is to kick the one below as hard as you can while doing all you possibly could to overtake the one above you.

In this state of trauma with its long time effect, the individual and social psyche is so completely devalued and distorted that the rule of law can only become the sorry victim.

THE RULE OF LAW

That then brings us to the concept or doctrine of the rule of law. What does rule of law mean? We can begin to define it by imagining the opposite of it. The opposite of the rule of law is simply rule by force. This represents the frightening proposition that might is right. It also implies arbitrariness, impunity, anarchy and uncertainty. It is encapsulated in the latin maxim si a jure discedas vagus eris, et erunt, omnia omnibus incerta. This means that if you discard the law, you go astray and everything becomes uncertain to everybody. The rule of law therefore is the opposite or antithesis of all these. What then does the rule of law connote?

It affirms the exclamation made by a great Anglo Saxon jurist and state’s man of great antiquity- be you ever so high and mighty, the law is above you! It connotes equality of all members of the polity under the law. It implies that both the lawmaker as well as the polity governed by the law are equal and subservient to the law to the same extent and degree. It connotes that in a polity as a civilized entity, nothing can be right which is not sanctioned by law and nothing can be wrong which is permitted by law. It is encapsulated in the latin maxim salus populi, est suprema lex which means that the welfare of the State is the highest law. There is immediately a collective resolution by the members of the given polity that the highest public policy in the polity is the affirmation that all shall be governed by the law. Is this utopia? NO. It is imperative if we want to break the vicious circle of unpleasant experience which has chained us to our traumatic past.

Scholars the world over would not discuss the concept of rule of law without mentioning its greatest modern exponent, Albert Venn Dicey, a Professor of English Law at Oxford University in the 19th century. But the history of the concept is very ancient. The concept over the years crystallized into a doctrine and there are two significant aspects of the doctrine. Professor Dicey in his law of the Constitution, 18853noted these two aspects as follows:-

(i).The absolute supremacy or predominance of regular law as opposed to influence of arbitrary power. This according to the Professor excludes the existence of arbitrariness, of prerogative or even of wide discretionary authority on the part of Government. He declared that English men are ruled by the law and by the law alone, and that a man may be punished for a breach of the law but he cannot be punished for anything else.

(ii).Equality before the law. This implies according to the Professor equal subjection of all classes to the ordinary law of the land administered by the ordinary law Courts. In this sense according to him, the rule of law excludes the idea of any exemption of officials or others from the duty of obedience to the law, which governs other citizens, or from the jurisdiction of ordinary tribunals4.

Let us emphasize immediately that it is not the focus here to discuss the concept of good and bad laws or just and unjust laws. We do not also want to go into the jurisprudence of the source of law, whether it is a command from a law giver or an aggregation of the consensus of the people in the form of social contract. Our focus is on the doctrine that the law as ascertained must govern all actions and inactions within a given polity without any exemption. All must be subservient to the law which must be applied universally and to the same extent equally to each of the members of the polity.

NIGERIA AND THE RULE OF LAW

If we now agree that we have settled the parameters of what we mean by the concept of rule of law, we must then decide whether this concept is part of the corpus jurist of Nigeria as a FederalRepublic and a polity. To decide this, some scholars may go in search of the fons et erigo of social and legal authority in Nigeria. This implies identification of the Nigerian grund norm. This search for a grund norm has engaged academic lawyers and social scientists for a long time and I have had a number of them describe that object as elusive. We cannot embark upon the search here within a space of 55 minutes. We shall therefore anchor our further discussion of the concept of the rule of law on the supremacy clause enshrined in our Constitution, the Constitution of the Federal Republic of Nigeria, 1999

Section 1(1) of the 1999 Constitution, makes a supremacy declaration. It declares that the Constitution is supreme and that its provisions shall have binding force on all authorities and persons through out the Federal Republic of Nigeria.

This is a strong restatement of the doctrine of the rule of law. Some academics and legal pundits may and do in fact disagree on this. They are of the view that the grund norm does not reside in our Constitution. One of the reasons they give being that the Constitution itself is a military imposition and that the declaration “we the people” which prefaced the constitutional document is a fallacy. However, section 1(2) of the Constitution underpins the supremacy of the Constitution by declaring that the Federal Republic of Nigeria shall not be governed nor shall any person or group of persons take control of the Government of Nigeria or any part thereof except in accordance with the provisions of this Constitution.

Chapter II of the 1999 Constitution of the Federal Republic of Nigeria, set out a charter of fundamental objectives and directive principles of State policy which essentially underscore the importance attached to the rule of law as the fountain and source of social order and good governance of the Nigerian nation State. Section 17 (1) and (2) (a), (b) and (e) of the Constitution are very instructive and provide as follows:-

17(1).The State social order is founded on ideals of freedom, equality and

justice.

(2).In furtherance of the social order -

(a).Every citizen shall have equality of rights, obligations and

opportunities before the law;

(b).The sanctity of the human person shall be recognized and human dignity shall be maintained and enhanced;

(c).……………………………………

(d).……………………………………..

(e).The independence, impartiality and integrity of Courts of law, and easy accessibility thereto shall be secured and maintained.

For us therefore, this should be grund norm enough. It means that the President of this country or any other functionary of the Government of Nigeria and all political parties in Nigeria including the political party in power must act in total subservience to the principles enshrined in the 1999 Constitution. Any conduct or exercise of power which is inconsistent with the provisions of the Constitution is pro tanto inconsistent with the paramount public policy of this country embedded in the doctrine of the rule of law as enshrined in section 1(1) (2) and section 17 (1) and (2) of the 1999 Constitution.

On the part of the citizenry, obedience to the law should come as an article of faith. The citizen must have confidence in the leadership, which confidence the leadership must earn and not command. The citizen must therefore upon the assurance of good faith on the part of the leadership, obey the laws as a matter of conscientious obligation. Again, I ask whether this is utopia? I think it is not. There are other nations who have come quite close to it and disobedience to the law in those nations has become the exception rather than the rule.

The point being made is that the foundation upon which the Nigerian nation state was erected was weak and shaky from the start. The law of averages stipulates that if a system has an inherent or latent defect and therefore a predisposition to break down, then it is a matter of time but it will certainly break down.

The rule of law had always been conceived as the centerpiece of the Nigerian political arrangement. That concept was at the core of every constitutional arrangement contrived right from the pre-amalgamation days to independence and self-rule. However, from milestone to milestone, in our national development, traumas of structural imbalance, arbitrariness, impunity, perfidy, greed and graft began to eat deep into the fabric of the polity, thereby imposing great stress on the concept of rule of law, with long lasting harmful consequences which have endured.

The citizen had expected that return to constitutional democracy in 1999 would usher in a glorious era for the rule of law, that expectation has unfortunately not materialized. This is because, under the present leadership, arbitrariness, impunity and disdain for the Constitution and Court orders have become the order of the day as far as the Government, especially the Presidency is concerned. The manipulation of the Electoral process was the ominous signal and the precursor to the political rascality now witnessed, executive impunity which followed it, legislative irresponsibility which came in toe and judicial impropriety which became manifest.

Court orders are selectively obeyed. The Presidency leads by infamous example in issuing executive judgments without regard to the separation of powers enshrined in the 1999 Constitution and in total disdain for section 6 of the 1999 Constitution. The legislature is either encroaching upon the executive functions of the State without regard to the Constitution or in its relationship to the Presidency, has become so emasculated that it no longer has the will or capacity to execute any meaningful function of checks and balances.